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Digital Britain Tackle Online Piracy Doomed

Digital Britain Tackle Online Piracy Doomed

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Published by Julie Thrasher
Article from BROADCAST about how the attempts to control digital piracy are 'doomed'.
Article from BROADCAST about how the attempts to control digital piracy are 'doomed'.

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Published by: Julie Thrasher on Mar 14, 2010
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09/11/2010

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Digital Britain: Why proposals to tackle online piracy aredoomed
26 June, 2009Well-intentioned they may be, but the Government’s proposals to tackle online piracy are unlikely to achieve itsobjective of reducing unlawful peer to peer file sharing by 70-80%So the Government proposes to legislate to require Ofcom to impose obligations on ISPs to: “notify alleged infringers (subject to reasonable levels of proof from rights-holders) that their conduct is unlawful;andcollect anonymised information on serious repeat infringers (derived from their notification activities), to be madeavailable to rights-holders together with personal details on receipt of a court order.” Perhaps in anticipation of criticism from rights-holders that these proposals do not go far enough, the Governmenthas proposed that Ofcom be given backstop powers to impose further obligations on ISPs to put in place technicalmeasures aimed at preventing or restricting unlawful file-sharing.These might include blocking, bandwidth capping or shaping and content identification and filtering. TheGovernment will be consulting on the “trigger mechanism” by which these backstop powers will become exercisable.In essence, it is suggesting that if, at the end of the period of 12 months after which the Ofcom code imposing thenotification and data collection obligations on ISPs is operational, 70% of infringers who have received a notificationhave not ceased the infringing activity, the backstop powers should be used.Good news for producers, broadcasters and other rights holders, then? It may appear so but rights holders need topeer beyond the surface and check out the icebergs beneath.Identifying infringers and gathering evidence are pre-requisites for the notifications on which the rest of theproposals hang. In its consultation paper “Copyright in a digital world – What role for a Digital Rights Agency?” issued earlier this year, the Government itself acknowledged that “to identify an infringer might well requireexamination of computers. There are considerable difficulties in identifying downloaders where, for example, illegaldownloading has occurred at an internet café or other area where there is public access. In the P2P area, forexample, infringement is established on the basis of identifying the IP address of uploaders – not downloaders.” In the same consultation the Government states: “The standard of evidence required from rights holders should beas high as can reasonably be demanded.” How many rights-holders will have the resources to identify infringers and gather evidence to the standard required?And will they want to, if the only outcome is a letter notifying infringers that their conduct is unlawful (a fact of which many accessing sites with names like The Pirate Bay can hardly be unaware)?Enforcing the second limb of the proposals regarding “serious repeat infringers” (however this may be defined) iseven more burdensome with rights holders facing the prospect of financing two sets of court proceedings – one toget a court order for disclosure of identity from the ISP and another for infringement of copyright. As theGovernment itself stated in the consultation mentioned above, “the cost of bringing an action can run into thousandsof pounds very quickly, with estimates in the region of £6k-£10k having been quoted at various times by rightsholders.”  And surely the determined infringer against whom the proposals are aimed will be able to circumvent the datacollection measures by frequently changing IP addresses or ISPs?Some rights holders will no doubt be thinking that all they need to do is sit tight for 12 months and await theinevitable failure of the notification and data collection measures. The Government will then have to activate thebackstop powers to force ISPs to address the issue through the technical measures, right? Wrong.The Government has made it very clear that the backstop powers will be introduced only if the notification and datacollection roosals have been full imlemented b rihts holders and ISPs alon with other measures which the

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